Jurors listened, wide-eyed, as Ross Ziev presented his case against King Sooper Grocery Store. His client was injured in a slip-and-fall, but they may as well have been watching a murder mystery as a poor-quality video revealed “who-dun-it.”

“You could see in the jury’s eyes – they were trying to figure out what caused this as well,” Ross recalls in this case break-down with host Keith Fuicelli. They ultimately awarded $350,000 to his client for pain and suffering and physical impairment.

The store’s video proved to be pivotal evidence, and Ross details his strategy for when and how he presented it. He also walks through important steps that PI plaintiffs’ lawyers should take in such cases, starting with claims notes, incident reports, and video. And he offers advice for how to compel an obstructionist defense to disclose vital information. As for who caused his client’s fall… tune in to find out!

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Episode Snapshot

• Ross’ path from his native Dallas to law school at the University of Denver to launching his own firm in 2019.
• Background of Ross’ case on behalf of a woman who slipped and fell in the aisle of a King Soopers Grocery Store.
• Ross filed a formal settlement demand, but his experience has taught him that adjusters try to low-ball the plaintiff’s lawyer.
• Ross’ questioning of the assistant manager revealed that the store cleaned up the spill before any photos of it were taken.
• The defense went to trial assuming that a random customer caused the spill. Ross’ team reviewed store video that showed the real source.
• Ross’ theory at voir dire: damages and physical impairment and whether jurors would award those types of damages.
• How Ross overcame defense objections to some testimony about the store’s failure to investigate the spill.
• Why Ross advises plaintiffs’ lawyers to review disclosure and discovery with “an eye for deficiencies.” 

The information contained in this podcast is not intended to be taken as legal advice. The information provided by Fuicelli & Lee is intended to provide general information regarding comprehensive injury and accident attorney services for clients in the state of Colorado.

Welcome to the Colorado Trial Lawyer Connection, where Colorado trial lawyers share insights from their latest cases. Join me, Keith Fuicelli. As we uncover the stories, strategies, and lessons from recent Colorado trials to help you and your clients achieve justice in the courtroom. The pursuit of justice starts now. All welcome back everyone. Keith Fuicelli here from the Colorado Trial Lawyer Connection. Really excited to have my good friend Ross Ziv on to talk about in great result against King Soopers on one of those slip and fall cases that I think we've all had many of and they really knocked it out of the ballpark with the jury on this one. So Ross, welcome to the show. Thanks for being here.

Yeah, thanks for having me Keith.

Alright, so before we jump into this case, and like I said, I know that for our listeners, most of us have cases that come up with slip and falls or slip hazards, trip hazards, whatever you want to call it. Essentially slip and fall in a grocery store and you were able to successfully succeed at trial, get a great result at trial on one of these. I know we all want to hear all about it, but before we do that, tell us a little bit about yourself and how it is you came to practice law as a plaintiff's lawyer.

Sure. I'm originally from Dallas, Texas. I went to the University of Texas for undergrad and then came out to Denver for law school at the University of Denver. I was a member of CTLA Colorado Trial Lawyers Association as a student. I was active in the Student Trial Lawyers Association through du I was really active in, we took a trial advocacy class and evidence class and I was in the criminal law clinic at du. So really was excited to get involvement with trial law and then I had some family that does personal injury in California and Texas and just thought it was a really good fit for me. I love being able to help people and it's just been a really great experience. I've been doing it for over a decade now.

And you've got your own firm legal help in Colorado, which you started. It was about three years ago now. Four years

Since 2019.

Oh my goodness.

Yeah, it's been quite some time.

I feel like it's the covid brain fog time warp. I don't know if you experienced this, but it's like things that happened four or five years ago feel like they happened yesterday or maybe's just me.

I feel like instead of like BC it's like pre covid and post covid.

So your law firm has been obtaining some phenomenal results including an eight figure. Was that also a premises case? Technically

It was.

So you are legal help in premises cases expert in Colorado. That is a killer title. Congratulations.

Thanks.

So tell us a little bit about the facts of the case we're here to talk about today.

Sure. My client was at a King Supers grocery store in Arvada, Colorado. She was doing some pretty quick shopping. Her husband was waiting outside for her and she's just doing what a normal person does around the holidays. She's trying to go in, grab a quick thing, wearing good shoes, walks down an aisle, one of the main aisles, and she just slips and falls and she doesn't really know what she fell on or she didn't at the time. She did see a white substance on her arm when she was on the floor and she was pretty embarrassed by the whole thing and she kind of popped up and went to the front of the store, let them know that she fell and then they cleaned it up almost instantaneously and she found out later that she had a meniscus tear and had some injuries that kept lasting longer than she thought they would and never really healed.

Okay. So she reported the claim immediately to King Soopers, is that right?

She did report the claim

Immediately, yes. And walk us through, since you are the premises expert, how in critical is that incident report, first report of incident to trigger the obligations of the premises owner to start preserving

Evidence? That is the $10 million question, Keith. I actually have a case at the Colorado Supreme Court right now on that very issue of pre-litigation spoliation and what a defendant needs to keep when they know about a claim. The argument that I think is the right argument and the argument that we've made to the Colorado Supreme Court is once they know the aspects of the claim, then they need to start preserving evidence. So in this case, my client didn't fill out an incident report until the following day, right? So she told them at the time that she fell and that she hurt herself and they asked her if she wanted to fill out an incident report and she was embarrassed about what happened and she said no. And then she left. Her and her husband came back to the store the next day and filled out an incident report. What we saw from the claims notes is that they didn't get the video, the claims adjuster didn't get the video for months, they didn't review the video for months at a time, which meant that that entire time months are going by and they're not looking for evidence, they aren't looking for the people that were on camera that could be questioned about the incident, that could fill out their own statements and that's against their own policies.

So in your experience, once your client reported the claim the first day before she came back and filled out the incident report, do the claim notes indicate at that time that internally King Soopers started to create a claim or was it only when she went back the next day and filled out an official incident report?

I don't recall the specific day that they had reported it to the insurance adjuster or to the insurance company rather. And for King Soopers, it's not really, it's a self-insured company, but it's managed by, I think it's Sedgwick, right? So somebody else manages it. I believe that they were notified of the injury and then they sent a request to the store, please grab the video. And after talking to the people that worked in the store, the manager on duty, she didn't even have access to the video at the time. It's a whole different department that is able to pull the video. So she never even saw the video until, well until litigation.

Oh, so you're in pre-litigation, client has a meniscus tear. Did you submit a formal settlement demand?

I believe that we did send a formal settlement demand, but truthfully in my experience, it's kind of wasteful to send a settlement demand on these premises cases. I find that even with verdicts behind you, and this is not my first premises case, this is my third, I think premises trial verdict. I've done a trip and fall against the hospital, a slip and fall against a grocery store and then a toxic tort case. Basically a toxic poisoning against an apartment complex. And even with those verdicts behind you, adjusters still want to low ball you and force your hand to file, which seems kind of silly to me, but we make really strategic determinations early on whether we're just going to file a case from here on out.

So on a typical slip and fall of an unknown substance in a grocery store, what are you looking for when that case comes in thinking, is this a case I want to try? Is this a case I want to file? Help us understand how you judge these cases as a good case or a bad case.

The first thing is going to be damages. We always got to start at damages. If somebody isn't hurt, it's real hard to make a personal injury claim, right? So you assess how hurt were they? Is there a surgical recommendation? Are there tears? Are there objective evidence of injuries? We can kind of get away sometimes with the physical therapy chiro, three, $4,000 worth of treatment in a car crash case where these car crash companies, they pay claims, this is built into their business model. On premises cases, you're going to have to file it, like I said. So you really want to be selective about what injuries you're going to file on. The second thing is do you have a good client? And here we had a great client. What our client did for work is that she helped blind navigate their workplaces.

Oh my

Gosh. So she would literally help people that were blind, go into an Amazon warehouse and walk them from the front door to their workspace, to the break room, to the bathrooms and make sure that this person can navigate their workplace effectively. What came out in testimony is the blind people could navigate the workplace effectively, but our client was struggling to walk through these corporate mazes with her injuries, which I think came across really well to the jury.

So talk to us a little bit about, you mentioned the meniscus tear. Am I assuming you had a surgical recommendation for that? We did have future

Needs, but our client did not choose to go that path, did not want to pursue surgery. So we actually had a future needs report, but we did not end up presenting it at trial.

Alright. And when you filed the case or heading into trial, approximately what kind of medical bills are we talking about for your client?

I think our medical bills were really only around 30,000.

And I know because you and I spoke beforehand, but eventually the decision was made to ditch those medicals and just go on noneconomic and impairment.

That's right.

So walk us through a little bit before I guess we get to that decision, I believe that was made pretty late in the game. If we got a listener that has their first grocery store slip and fall, what kind of discovery advice would you give them? What should they be looking for? How soon do they do the request for the 30 B six deposition, et cetera?

Sure. You're going to start with the claims notes and the incident report that really outlines how the case when and it outlines what kind of evidence should be there. Was there video of the incident, it should say in the claims notes, was there an incident report filled out? It should be in the claims notes. After that, you make sure that you get their policies and procedures, policies and procedures will tell you what an investigation should look like, what an incident report should look like, who is supposed to be interviewed, what is supposed to be documented. The other thing that you want to do is you really need to identify, most of these grocery stores are really big into videos. They are looking at customers, they are making sure people don't steal from them. So the focus is on video. And just like other cases, our case had video evidence.

11:31:

It showed the slip and fall. Now it wasn't good quality video. It was actually very poor quality and they had the choice in that, right. The grocery stores get to choose what video they can do and it's pretty inexpensive these days to get high quality video. The other funny thing about video is what happens after the fact. So in particular, they had the video, they preserved the video of my client's fall, and then the rest of the video, which is human choice of what is preserved, what they pick out, they preserved, they followed my client around the store, they took the video and they showed where she went after she fell, that she went to the front, that she spoke to this person, it followed her. And then it tracked backwards what she did from the moment she walked into the store to when she fell. But what it didn't track is who caused the fall, who caused the object to fall to break or whatever it was. Right. And that evidence could have been preserved. They absolutely could have done that. That was a choice that they made. And what they would rather do is prove their defenses than preserve the video that proves your case.

So how does that work? Did you get exfoliation instruction? How soon after the fall did you get the case to be able to send a spoliation letter to King Soopers?

That's a really good question. I have it right here. So the injury happened on December 22nd, 2021, and we didn't get the case until March of 2022.

Okay. But then, am I correct in assuming as soon as you guys sign up the case, you send out some kind of spoliation letter to King Soopers?

Always every

Case. And so did you have any fight at that point about was King Soopers resisting that they had an obligation to preserve all the video evidence from that day that essentially would have fallen or would've shown which product fell and created the hazard?

No, and I think very seldom, unless you know exactly what happened, it's very rare to have that fight that early on. You don't know what you don't know at that point.

13:40:

So we didn't know what our client really fell in. We don't know if it was, we don't know who it was caused by. We didn't get the video until litigation. So that's the hard part about these cases from a plaintiff's perspective, is all of the evidence is within their control, which is why I hope that the Colorado Supreme Court really sees these issues for pre-litigation spoliation because we don't have any control over it. And our position is that if there is a ruling that says that defendants don't have any duty to preserve pre-filing, that it's going to be a race to destroy evidence.

So is it your position that King Soopers had an obligation to preserve the video from the moment she went up to the counter and said, Hey, I fell and I'm hurt? Or was it once you send in the spoliation letter in March? So three, four months later,

My position is once she identifies that she fell and that she was hurt, because at that point they knew there was a dangerous condition in their store, which was some sort of foreign substance on floor,

And

Had they seen a video, they would've seen that it was something that they should have known about. Because what ended up happening is that it was a King Super's employee that caused the spill. But even if they didn't know that at that point, they at least know that an injury was caused from a dangerous condition in their store and they had the duty to investigate what caused it because my client didn't have access to that.

Well, and did I hear you say that you had video of King Soopers pretty quickly cleaning up the spill?

It was hard to tell actually. I think it cut off right when she fell, but we had testimony that they cleaned up the spill right away.

When they clean up the spill, do they identify in their internal notes what it was that was on the floor, the substance,

They identify what they thought it was. And so I can't remember what they said. We thought it was yogurt. I don't remember what their position was on what it was. I want to back up a little bit, Keith, and talk about the spill and them cleaning it up right away. The evidence, the testimony said that they should take a picture of the spill after if somebody is injured

16:08:

And they didn't take any pictures, they just cleaned it up. And so when questioning the assistant manager, she said, yes, I had a phone in my pocket. My phone had a camera. I could have taken pictures, but it got cleaned up too quickly. And so the question is, well what did you do to stop that from happening? You could have told somebody to put a cone on it until you got there to take a picture. You could have asked somebody else to take a picture. Right? Yes, I could have done that. But did you do that? No, I didn't.

And you mentioned that it was a King Super's employee that caused the spill. How did you determine that and how long was the spill on the ground before your client fell, if you know?

Yeah, and actually I need to back up here and say I tried this case with Hannah Bledso. This was really started off as her case. I came in maybe a couple months before hbl, so was in my office. So they cleaned up the spill right away and my client fell, I think it was within less than five minutes. I think it was more around two minutes from when the spill happened to when she fell. That's a hard case if it's not caused by the grocery store. As we were prepping for trial, we were going under the assumption that we had to prove that within those couple minutes that multiple employees passed the area and should have seen it and should have cleaned it up. What ended up happening is that while we're prepping for trial, Hannah saw the video and was kind of analyzing it and backtracking and said, you know what? It kind of looks like the person who caused the spill is wearing an apron. And like I said, it was bad video quality and the person who spilled is holding stuff. And I think that she was holding packages of yogurt or whatever it was, but you could see, and if you backtracked rewound the video, you could actually identify her shoes and her body shape and a sweatshirt that she had tied around her waist.

18:12:

So if you looked at that person, if King Soopers would've gone backwards to try to track that person like they did to track my client from the moment she walked in the store, they would've clearly seen that this was an employee. Because a different part of the video earlier on shows the same person, same shoes, wearing a King Super's apron. And with that same jacket wrapped around her waist in my eyes and in the jury's eyes, apparently there really wasn't any question.

And so did King Soopers fight that? Did they suggest it was someone else? Did they aggressively say, this wasn't our person? Or did they say we don't know?

The beauty of it is that they actually had no idea that our position was that this was an employee. They went to trial under the assumption that this was some random customer that dropped something and they have zero control over a situation like that. So that's what ended up happening. And as we went in, we realized because even our expert, we hired a premises liability expert, a grocery store expert who reviewed the video and took screenshots of it. And even he did not identify that this was a King SO'S employee.

Wow.

We didn't end up calling that person to trial. The judge actually struck some of that testimony, but they walked right into it. When we gave opening statements, I kept it very, very simple. I did not really identify what we believed was the cause of the fall because I knew exactly what they were going to do. And they walked right into it. They came in and they said, this is some random customer we couldn't have known. There's nothing that we could have done to prevent this. And so as the case built, it was like a murder mystery kind of. And you could see in the jury's eyes, they were trying to figure out what caused this as well. And when we backtracked, when we cross examined or actually direct examined the assistant manager who had not actually watched the video in any detail and showed, doesn't this look like an apron of a King Supers employee? Don't you think this was a King Supers employee? And she's like, well, I can't really tell. You could see the jurors eyes roll back into their head.

Wow. So what a brilliant move on your part. So talk us through the strategy. I mean, I'm hearing that it's shortly before trial, you all come to this realization, we got an employee here that causes this fall. And then to have the foresight, this was a conscious decision. You go in and you just give kind of run of the mill opening statement. You don't say anything about that. And then you let this develop during trial.

That's right. And they kind of threw a fit about it. They told the judge, this is trial by ambush. We didn't know that this was their position. This is the first time that we're hearing of this. And the judge is like, well, they don't have to tell you what their trial strategy is in advance. And you could have very easily figured this out too. So tough.

Wow. And who defended this case? Isn't it usually like Sutton Booker or one of those firms that

It wasn't Sutton Booker was, I think it was Nathan Dunman Myers I believe.

And we should have covered this, but you were in Jefferson County with Judge Zeek, correct?

That's right.

Alright. And so we kind of got ahead of ourselves. Did you handle vo dire or did Hannah handle voir dire?

I handled voir dire. I handled opening statement.

What was your theory going into voir dire? Were there specific jurors you were really looking to extract bias from or what was your thought on voir dire?

It was really aimed at damages and physical impairment and whether people were able to award those types of damages. And I will tell you that I don't believe that the jury was really on our side during voir dire. I think we had a lot of what I perceived as hostility in terms of there's too many lawsuits, there's people are asking for too much. And the person who ended up being the foreman was a police, the head of a police department, retired head of a police department. So we won her over. Absolutely.

Wow. Kudos to you. I will digress for a second and say that I tried a case against Whole Foods that was a defense verdict. I clearly messed that one up, but it was a police officer that we kept on who was the foreperson. And I vowed never to leave a police officer on a jury again, because my theory, and I'd love to hear your thoughts on this, obviously this worked out great for you, but you've got kind of a in the jury room and typically they're not making a lot of money, so they might have some resentment against people. But all of this of course came to us after we chose the police officer for our jury. We thought we were brilliant and got defense verdict. But I dunno. Do you have any thoughts on jurors and sort of stereotypes as it comes to leaders versus followers?

It's so hard. It's gone so many ways. I just tried a med mal case where a lot of it was about compliance and whether they complied with regulatory standards. And I'll tell you that I talked to one of the jurors afterwards that we thought would be really good. She was in compliance for a corporation and what she ended up saying is that we got a great verdict on it, but she was one of the worst jurors in the room for us because in her eyes we were asking for millions of dollars, but in her eyes because in her world compliance violations can only max out it at $50,000. That's what she wanted to award the max for a compliance violation.

Oh

Wow. So the longer I do this, the more I realized that stereotypes themselves for people based on their professions are not going to get you where you need to

Be. And you do voir dire, you end up with a panel and then shortly before trial you drop the economics. Is that right?

That's right. And actually I want to go back to voir dire just a little bit. I feel like I made such a good record because there's the questions that you ask about fairness in the preponderance standard and how much evidence do you need? And honestly, I could have struck, I believe I could have struck half of the jury panel for their positions that they were taking. But it's really hard. These judges will rehabilitate witnesses and I don't even think it's proper rehabilitation, right? Because what happens is you talk to them and you say, do you believe if things were just more likely than not in my favor, could you rule in my client's favor? And they say, no, I would need more evidence. And anything that you say otherwise, and they say no, I would absolutely need more evidence. I could not do it based on 51%. Nothing would change my mind. And then the next question is from the judge, well, if I told you to follow the rules that I give you and it says that you'd need to decide by preponderance, would you do that? And they say, oh yeah, absolutely. We'd follow the jury instructions that we're given. Sure. What do you do there? It just is what it's,

Yeah. And that happened to you here and is that one of the things that you're going to bring up on appeal?

No, because it's hard to say that those jurors made a difference in the case. We ended up getting a good verdict. We ended up getting a good jury pool. So it's really hard to make an appeal based on voir dire. You would have to really show a lot to show that that significantly changed the outcome of a case.

So to jump to the end and then we can work our way back, you waive economics. What was the result in the case? What was the verdict and what'd you ask for?

Yeah, so we ended up asking for just less than a million dollars I believe, and they ended up kind of doing a split the baby scenario and gave us $350,000 total between pain and suffering and physical impairment.

Okay. Wow. What a great result. And were there any serious pre-trial settlement discussions?

I wouldn't call them serious. They were offering in the tens of thousands of dollars. We weren't really entertaining it and I kind of like that. Right. They make it really easy to go to trial when they don't offer what they should be offering.

Yeah, well I guess maybe if they thought that they just had a spill on the floor for three minutes or less, then maybe they were thinking they had a pretty good shot until you pointed out to the jury and them that it was actually their employee that caused the spill.

That's right. And who knows how it would've turned out, had it been on our original strategy of we can see multiple employees pushing carts past this spill, but they didn't see it, who knows what would've happened?

Did you have that kind of evidence? Was there evidence that employees had either walked across the aisle or walked down this aisle in the time between the spill and when your client fell?

Yes, we had people with carts that were pushing past there. But then again, king Supers lost all the credibility because when we'd ask a clear question like this person pushing a cart, that's clearly not a shopping cart, it's one of these big industrial restocking carts, is that an employee? And they'd say, well, we can't tell from the tape. They lost credibility there as well. But there were certainly multiple employees that walked by in those two or three minutes, but it's hard to say how it would've turned out. They have a policy in place that somebody does floor sweeps, and I think it has to be done once every, this policy for the store was once every, I think two hours where a person sweeps the store. They actually are supposed to walk it aisle to aisle and look for any spills. And they complied with that. They did walk it within their own policies and you could see them on the video doing it, but it didn't end up mattering for this.

So am I hearing you say that they did sweeps, but the sweeps were after the fall? In other words, you didn't have somebody conducting a quote sweep between the fall of the merchandise and your client falling?

Correct.

Okay.

There was not, the person must've been at a different part of the store by then.

How were the employees trained? In other words, these employees that are pushing the carts that are not shopping carts, the restocking carts, I'm assuming, are they all trained? You have to always be looking for spills. If you see a spill, you must immediately report it. This is a, safety is our highest priority, all of those things.

Absolutely. And that's great within the policies and procedures is there's lots of references to safety and there's lots of references to knowing that spills on the floor create a dangerous condition. And not only that, but there's been, king Soopers is a subsidiary of Kroger and there are people on the c-suite of Kroger that have statements on the internet about how important safety is and how much money slip and falls costs. One thing that I really like to present in cases and feed it in through experts if I can, is the cost of really it's OSHA violations, it's the cost of having slip and falls to the entire United States and it's very costly.

So I'm pausing because I have two questions I want to ask. The first question is, did you extract the concessions about needing employees to be on the lookout to spot spills immediately report? Did you do all of that in a 30 B six deposition? And if you did, did you sort of designate and play that testimony or did you call as a witness someone from King Soopers? If so, when we called

The witness, so we had 30 B six testimony. I don't think it was as powerful as we wanted it to, but it's easy to get them to confirm those risks of safety because these managers, they want to confirm what's in the policy. They want to tow the company line. So it's easy for them on the stand to confirm that safety is important and that these are the things that they should be doing. When I do a premises case, I like to call their witnesses in my case in chief and kind of build them up first and then knock them down. This stuff is so important. There's so much other stuff we could have done to protect the safety of the client.

As you're explaining your strategy, it seems like at least with premises cases, this would be one where you don't really want to play 30 B six depo testimony where you can put a live individual on the stand and do a rules of the road type of cross-examination where they can't credibly contest things about safety, training other people, and kind of start out the case that way. Has that been your experience now having successfully tried all these premises cases?

It really depends, and one of the things it depends on is what the witness is like if they're a super polished witness, right? If it takes you a six hour 30 B six deposition to really just have a couple increments of good testimony, then you want to play the video because you know how they're going to squirm. These people are King Soopers like assistant managers and not to begrudge assistant managers at King Soopers. But these are not the polished corporate witnesses that we know that have done a ton of depositions and that are able to squirm around a lot. So they're already in a pretty uncomfortable environment and they're going to either let you lead them where you want to go or they're going to look really bad fighting the obvious. Right.

Sure. And I'm taking from that you are just subpoenaing rather than a 30 B six witness, the specific store assistant manager or who was on duty at the time that investigated the claim? Is that what I'm hearing?

Well, for this one, their 30 B six ended up being, they ended up having two 30 B six witnesses, but one of them was the assistant manager who also ended up being the corporate representative at trial. Got it. So she was the face of King Supers during the case, and so we called her.

Got it. Let me ask you this question. I listened to some of Keith Mitnicks podcasts where he's talking about slip and fall cases in grocery stores and whatnot. Did you ever investigate or go down the road of their flooring itself? Wasn't slip resistant enough or did you just sort of accept that the flooring itself is reasonable and this is much more of a you need to see a hazard, clean it up immediately?

We didn't really lean into the flooring itself. I have had another case where that was a huge issue and we did testing and did all that, but in this case in particular, some sort of substance on the floor, you can see from the video, she clearly slipped on it. Her testimony of how she slipped was credible. She was wearing good shoes. It really didn't end up being, that's not where we wanted to throw money for experts.

And just because you brought it up, and I'm just curious, if someone is listening and they get a slip and fall, any kind of premises where someone has fallen on an unknown substance, do you recommend sort of going down the slip coefficient, have somebody get out there and test the flooring, or do you have an opinion on that investigation piece?

Yeah, I think it starts with common sense, right? If you can tell the story of how this happened to friends, neighbors, relatives, and they say, oh yeah, totally, that shouldn't have happened. That's definitely what caused the fall, then I don't think you need to invest in that kind of stuff. If it's like your client's kind of wearing flip flops and you couldn't see, you don't know exactly what was on the floor or it's just not so obvious and you need that extra little bit, then you need to invest in better experts there.

Yeah. Talk to us a little bit about, I understand there was a spoliation, subsequent remedial measure interplay that came into this case. Could you talk to us a little bit about that?

Sure. We wanted to bring up just how bad the investigation was afterwards. In this case, there was video, but nobody looked at the video for months and months and months. And even when they did look at the video, you can see at a minimum there were King Super's employees that walked their carts pass where the spills were, and they didn't get any statements from them. What we heard, what the testimony was is the assistant manager going, oh yeah, I talked to the people that were there and they didn't know anything about it. Okay. Who were the people you talked to? When did you talk to them? Was it recorded at all? And they just didn't have any specifics on it? It was just, oh, it was a long time ago. I talked to them. I don't really know.

And so did the defense file a motion in limine to exclude sort of their subsequent fall investigation pieces or how did it come up evidentiary in the case?

It really came up in their 7 0 2 motion to strike our grocery store liability expert because a lot of what our experts report centered on was their investigation and what a good investigation looks like and how they failed in their investigation. And so we briefed that and the judge kind of bought this subsequent remedial measure argument and kept out a lot of that portion of the report. Now, as we got further into trial, it became more relevant towards the spoliation part of it, but the judge already had this ruling, and so we were kind of walking this weird thin line about what we could testify to and what we couldn't. And ultimately some of the testimony came in and then any direct arguments on their failure to investigate this after the fact were struck down.

Just so I'm clear, were you allowed to ask at trial of the store manager, did you speak to anybody afterwards? Yes, I spoke to this person. Who was it? I don't know. I don't know. Is there any written record of what these people had to say? No. Were you able to elicit that testimony at trial

Over Objection. Yes. We ended up getting it in.

Okay. And so ultimately then you go to trial. Walk us through a little bit about when it was you recognized the employee was the one that caused the fall and how that factored into your strategy At trial,

Hannah recognized that it was the employee that caused the fall, and it was probably done a couple weeks before trial because our liability expert, our grocery store expert, had reviewed the video and had taken screenshots from the video. And even he did not put two and two together and identified that this was an employee. So a couple weeks before Hannah's watching the video again, and it'd probably been a while since we watched the video and she said, Hmm, this actually looks like it could be an employee. And then she looked at, because it was like an hour of video. So most of the time when we look at videos, we look at what we believe are the five minutes of pertinent information. How did the spill occur? Where did it come from? How did the fall happen? Right. We had to back up 10 minutes, 12 minutes, 20 minutes, whatever it was to see that the body style, the shoes, the jacket matched this person who was wearing a King Supers apron.

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And when the person who spilled walked away from the spill, you couldn't really see the King Supers apron because she holding a lot of packaged stuff, including one of the things that fell. And one of the arguments that they made that I think is in their appeal is that there was an instruction on respondent at, and what they argued is, well, if this was an employee, and we don't know if it was, we don't even know if this person was working at the time, she could have just been shopping and coming and shopping for her own stuff, wearing a king Soupers apron in the middle of the day. She could have come from a different store. They actually made that argument that a K so's employee could have been wearing an apron from a different grocery store and just came to this King Soopers to do her personal shopping, and then they wouldn't have been responsible because this person wouldn't have been in the course and scope of her employment.

Wow. That's fascinating. Now, they made that argument, the court of appeals, not at the trial court, I'm assuming?

Well, no, they made that argument at the trial, which I can't imagine anybody bought, but then they kept their notice of appeal pretty vague, but I think that that's one of the issues that they're going to explore is that the respondent instruction was not correct.

Okay. So you get the respondent agency, and that seems like a good place for you to be in terms of the appeal because the court didn't rule as a matter of law that the person on the video was an agent of King Supers at the time. It was a question of fact for the jury to determine, do I have that right?

You do have that right.

Okay. So that seems like a great place to be as far as the appeal is concerned from your perspective.

Absolutely.

Yeah. I got a question about, it sounds like you all sort of realized we have a King SOS employee here causing the spill, and this is shortly before trial. Is that something in your opening statement comes right out the gate, you're going to hear this was the King Soopers employee. What did you do with that extremely valuable piece of information strategy wise at trial?

We kept it to ourselves until they basically incriminated themselves during their opening and said, there's nothing we could have done. We had no idea who caused this. It was probably a customer. There's nothing we could have done. And so then once we started examining the King Super's corporate representative who was the assistant manager, we walked her through the video backwards. So we started from the spill. We said, you can see here that this is how the spill occurred. You can see if you zoom in here that this person, it looked like somebody dropped this and this other person picked it up and added it back. And amazingly, she had not actually seen it. She testified in her 30 B six that she had seen the video, but then at trial she said, well, I saw the video, but I never actually zoomed in on it like this. So she had no idea.

And I want to touch on this because I think it's just brilliant on your part, and it seems like if I had to guess it had a significant effect on the outcome of your trial that you have this piece of evidence that is really good for you and you don't mention it in your opening statement that is gutsy and brilliant. Was it obvious that that was the right call or was there any discussion with you all about how to use this or not? Or is that just you sort of knew this is something you knew that they're going to walk into that punch and they're opening statement and they're going to say that there's nothing they could have done and then you're going to pull it right in and little rope a dope? Is that what went down?

I think that the best trial lawyers are ones that are overly prepared and ones that can also pivot. So when discovering this evidence a couple weeks before trial, the discussion is, oh, how obvious We should have seen this, right? We should have seen this, but I'm glad that we didn't because we would've changed our strategy. So you're exactly right. We pivoted. I think it was pretty obvious right away that that should have been the strategy because these defense attorneys are overworked, and if we do our job even a minuscule amount and obviously not a minuscule amount, we actually have to really prepare hard for trial, then we are more prepared than they are. We know the evidence better than they do. And you can tell from their pleadings in their 30 B six and how they argue things, you can tell what their case strategy is going to be. Even from the trial management order, you can tell what their position is going to be. And so sometimes if you know the case better and you know that they're going to make an argument that the evidence does not support, you'll let 'em

Walk right into it. And so I'm wondering for people that are listening and they're going to have these cases in the future to be able to foreshadow the typical obstructionism that comes in. In other words, when you ask them to identify various employees on the video, their response was, we don't know. We don't know. Is that right?

Yeah. And actually, let me just speak directly to younger attorneys who don't have as much experience, especially in premises cases. You always have to hold their feet to the fire. Just assume that in every case you're going to have to review the disclosures and you're going to have to ask for more, and you're going to have to review their discovery responses and you're going to have to point out how inadequate they are. What we do in every single case is once an attorney enters an appearance, we send a letter to that attorney saying, Hey, we're glad to see you on the case. Initial disclosures are coming up. Here are the documents we expect to see in initial. And then they invariably disclose none of those documents. And then we say, Hey, we think you must've made a mistake. Here are the documents that we expected. And under the rule, they go to a claim or defense and we know that they exist, please disclose the documents, and they don't do it. And we actually compel disclosures instead of waiting for discovery requests.

So you're sending sort of the 1 21 letter or deficiency letters, whatever you want to call it, emails setting conferral in every case, especially in premises liability cases. Is that right?

I'm not saying that's in every case. I'm saying you should expect to have to do it in every case. So you should review the disclosures and review the discovery with an eye for inadequacies, because many times, I can't tell you how many disclosure documents I have seen where the corporate defendant lists employees of corporation. They don't do any effort to identify the specific employees to list last known phone numbers or addresses. Now, the other thing that I see that I would like to stop from happening is that they will list employees, they'll identify employees, and they'll say that every employee is care of the defense firm.

Yes, I've seen that lots.

If you actually dig in at all, if you actually ask the questions, what you find out is these attorneys have never spoken to these people. These people are not in management. The attorneys do not actually represent them. And so I've had judges that have, I've had to go to hearing on it, and the judges say, yeah, you cannot list them care of your law firm unless you represent them.

Help me with my sort of understanding was if their current employees though, there's still off limits to talk. Is that right? Or is that how you practice?

The distinction is actually whether they are in a management role, if they are current employees, I think that that's correct. You should not be contacting 'em because within their contacts of a defendant, you're basically contacting a defendant. I need to reread the case law. I know for X employees there is an issue of whether they're in a management role making management decisions or not.

That's sort of how we've always done it is if they're not in management, then fair game to reach out and contact. But so I'm glad I'm not missing the ball on that one. So what a fascinating result. Obviously your client must be thrilled. What kind of advice do you want to give to younger lawyers that have these premises cases, whether it's a slip and fall on ice or slip and fall in a grocery store, other than injuries start the ball threshold because these cases end up in litigation invariably. What other advice can you give people on how to work these cases up and successfully? Try 'em.

Be diligent. Be diligent with your discovery. Be diligent with your disclosures. Identify of time ahead of filing what documents you want to see, what documents you believe are out there, and go through your cases with that in mind. And when you do the 30 B six, ask about those documents. Ask about what would show this, what documents exist. You have to do that. I know people that practice law with the eye of, here's the recipe for litigation. We file the case, we send out a set amount of discovery requests, we set it for deposition, we prepare the deposition based on the discovery request that we got two days before and then we set it for mediation. If you do that, you're just not going to get your case value, you're not going to get the documents you need. They're going to withhold 'em. You're not holding your feet to the fire and you're not doing your clients any service.

Yeah, that is such great advice. Ross, last thing, thank you so much for being on the show, and I know that our listeners are going to gain so much from listening to you. If they want to get ahold of you, how do they get ahold of you thinking people might want to co-counsel with you on some premises cases and other types of cases, med mal cases it sounds like. How do they get ahold of you, Ross?

Yeah, I'd love to talk to them. They can call my law firm at three five one two five six seven. They can go to our website, www.helpingcolorado.com. I look forward to working with them.

Alright, well I cannot thank you enough for being on the show. I'm jazzed ready and excited. And I guess the one good thing about these premises cases is it seems like a lot of times now it's hard to get cases to go to trial, but with premises cases, you got a lot better chance of going to trial on a premises case than you do a car crash case, at least in my experience. Is that what you found?

I think that that's right.

Yeah. Alright, well thank you so much for being on the show. Thank you everyone for listening and look forward to seeing you all in the courtrooms and learning more about how to better serve our clients. Thank you everyone. Thank you for joining us. We hope you've gained valuable insights and inspiration from today's courtroom warriors. And thank you for being in the arena. Make sure to subscribe and join us next time as we continue to dissect real cases and learn from Colorado's top trial lawyers. Our mission is to empower our legal community, helping us to become better trial lawyers to effectively represent our clients. Keep your connection to Colorado's best trial lawyers alive@www.thectlc.com.